The National Press Photographer’s Association (NPPA) recently worked with the New Mexico Department of Homeland Security (NMDHS) to revise policies regarding photography in its online Suspicious Activity Reports (SAR). NPPA General Counsel Mickey Osterreicher was initially alerted to the issue when NPPA member Amanda Emily wrote on the NPPA Facebook page on Feb. 19 about the issue: “If you ever visit New Mexico, don’t bother photographing “historic structures and national landmarks” among other subjects….it’s considered a suspicious worthy of reporting to their fusion center.” This is the original version of the NMDHS SAR policy.

Several NPPA members commented on Ms. Emily’s post, including Osterreicher, who on Feb. 20 sent an email to Mr. George Heidke, General Counsel for the NMDHS, about the NMDHS’s SAR forms. In that email Osterreicher recommended that NMDH modify their SAR to remove both the “Activity (photography) checkbox” as well as the “Q & A” answer directing that “You should immediately report people who photograph, videotape, sketch . . .” which immediately preceded that checkbox because both portions on the SAR form indicated that photography in general constituted a suspicious activity. Osterreicher then quoted from a “Report It Form” issued by the Spokane County Sheriff’s Office which describes the appropriate way to address photography in the context of a SAR, and which he also had a part in correcting in 2011:

“These activities are generally First Amendment-protected activities and should not be reported absent articulable facts and circumstances that support the suspicion that the behavior observed is not innocent, but rather reasonably indicative of criminal activity associated with terrorism or other crimes, including evidence of pre-operational planning related to terrorism. Race, ethnicity, national origin, or religious affiliation should not be considered as factors that create suspicion (although these factors may be used as specific suspect descriptions).”

In his email, Osterreicher also pointed to a FPS (Federal Protective Service) bulletin which recognizes the First Amendment rights of photographers to take photographs of federal buildings unless such activity gives rise to a reasonable concern of suspicious activity. He then said, “photography by itself is not a suspicious activity and is protected by the First Amendment.” “Unfortunately the reliance by law enforcement officers to question, detain and interfere with lawful activities by photographers under the guise of preventing terrorist activities has become a daily occurrence, ” he added. “The abridgement of a constitutionally protected activity because of that erroneous belief is only reinforced by your specific reference to photography as possibly being part of some sinister act.” Osterreicher concluded the email by again urging Mr. Heidke to consider amending the NMDHS SAR form to remove its references to photography.

In a not too surprising coincidence, world-reknowned photojournalist David Burnett also wrote to Robert McGee, Chief Information Officer for NMDHS, stating his concerns over “the potential for extremely negative backlash which the public might feel, based on the . . . guidelines such as they are outlined on your website.” “Photography is not a crime,” he went on, adding “those of us who carry cameras on a daily basis have to deal with the increased sense of paranoia, and often ill-conceived reactions by much of the public over something as simple as taking a photograph of a historic landmark building, or a natural wonder. In fact, let’s be honest, the world at large would hardly know of any of the wonders of New Mexico were it not for the photographs which have become iconic in their own way, over the years.”

Burnett pointed out that “photography remains a passion for millions of Americans (and others), and the artistic expression through which we see the world with our cameras is unquestionably one of the great visual joys of our time. I fear that in an attempt to rally public interest in protecting society at large, you may have put at risk something which provides a great deal of joy , and which no doubt through commerce and tourism, add a great deal of benefit to New Mexico,” concluding with a plea to “reconsider the manner in which you seek to engage the public re: ‘suspicious activity’ as we all want to live in a safe environment, but to do so at the cost of being suspected as ‘terrorists’ or ‘criminals’ for merely engaging our right to take photographs, is something which in the end does not properly serve the public at large.” Burnett also shared copied Osterreicher on his email.

NPPA is pleased to report that on March 6, Osterreicher received an email from Mr. Heidke which stated: “The Department has concluded its review of the SAR instructions and has posted new guidelines on its website. We appreciate your comments. Thank you.” “This incident serves as a reminder that everyone must remain vigilant to ensure that these types of postings are corrected to avoid the chilling effect they have on our First Amendment rights,” Osterreicher said. The communications between the two attorneys also show the ability of NPPA to contact and work with law enforcement and other government agencies in a positive, instructive manner to help improve relationships between photographers and those entities. NPPA encourages its members to communicate such issues as the NMDHS’s old SAR policy to Mr. Osterreicher so that the NPPA can continue its mission of advocating as the voice of visual journalists. The new NMDHS link can be found here and the new form here.